State v. Herrera

June 20, 2006

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,v.CARMELO HERRERA, DEFENDANT-APPELLANT.

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

In this appeal, the Court must determine whether the identification procedure used by the police was impermissibly suggestive and resulted in a substantial likelihood of misidentification.

Shortly after 12:00 a.m. on February 26, 2002, Benjamin Valentin finished his shift as a private security guard in a Hoboken housing complex. He entered his car and drove to the exit where he waited for traffic to pass. He observed a man, later identified as defendant, Carmelo Herrera, approach on a bicycle and yell something that Valentin could not hear. Valentin lowered his window, and defendant walked up and asked for five dollars. When Valentin replied that he had no money, defendant punched Valentin in the face and on the back of the neck, knocking Valentin unconscious. When Valentin regained consciousness, his car was missing and he was bleeding. He walked to a nearby security booth and called the police. Officer James Miller of the Hoboken Police Department arrived at the scene. Valentin described his assailant as a Hispanic male, about 5'7", with a husky build and a scar on his face, who was wearing something white and red. Valentin was taken to the hospital for treatment. At trial, Office Miller testified that Valentin had described defendant as wearing a black jacket with red lettering, and he had a "short style cut black hair."

Meanwhile, Officer Joseph Carr of the Harrison Police Department responded to an accident scene shortly after 1:00 a.m. He observed a damaged vehicle in the roadway. A man later identified as defendant was standing in front of the vehicle later identified as the car stolen from Valentin. Because defendant appeared intoxicated, Officer Car arrested defendant and transported him to the police station.

After the Hoboken police were informed that Valentin's car had been recovered, Lieutenant Edward Mecka contacted the prosecutor's office to request a "showup" between the victim and the person found with Valentin's car. Lieutenant Mecka drove Valentin to the police station. They learned that defendant had been taken to West Hudson Hospital, so Lieutenant Mecka drove Valentin there. As soon as Valentin entered the emergency room, he looked around and identified defendant as the man who had attacked him. Defendant was sitting on a hospital bed about six feet away. The only other persons in the emergency room were two police officers and nurses.

Defendant was indicted for first-degree carjacking and third-degree receiving stolen property. Prior to trial, defendant sought to exclude evidence that Valentin had identified him at the showup. Following a hearing, the trial court found that Valentin had seen defendant in the neighborhood prior to the incident and the police did not cause Valentin to misidentify or identify defendant. The trial court concluded that the out-of-court showup was not impermissibly suggestive and that the out-of-court showup identification was admissible. Based largely on Valentin's identification testimony, a jury found defendant guilty of both counts. The convictions were merged and defendant was sentenced to thirty years imprisonment with an 85% parole disqualifier.

Defendant appealed. The Appellate Division, in an unpublished opinion, rejected defendant's argument that the identification procedure was impermissibly suggestive and resulted in a substantial likelihood of misidentification. The Appellate Division affirmed the convictions, but remanded for resentencing because the trial court improperly considered a 20-year presumptive term for carjacking. The Supreme Court granted defendant's petition for certification limited to the issue of the identification procedure used by the police.

HELD: The showup identification procedure was impermissibly suggestive, but because the victim's identification of defendant was reliable it was properly admitted at trial.

1. The federal constitutional standard for deciding the admissibility of identification evidence is a two-step process, requiring a court to determine, under the totality of the circumstances, whether the identification procedure used was impermissibly suggestive and, if so, whether the procedure nonetheless was reliable. For the first time in this case, in a supplemental brief to the Court, defendant urges the Court to adopt a new and more restrictive standard under the state constitution for determining the admissibility of showup identification evidence. Defendant's proposed standard would allow showup identification evidence to be admitted only if there were exigent circumstances that required an immediate showup identification. In the absence of a full record on the issue, an in light of the Court's consistent application of federal constitutional precedent in deciding the admissibility of identification evidence, the Court declines to adopt a new standard under the state constitution. (pp. 5-14)

2. A one-on-one showup is inherently suggestive because, by definition, the victim can only choose from one person and, generally, that person is in police custody. More is required, however, to tip the scale from inherently suggestive to impermissibly suggestive. (pp. 15-17)

3. In this case, the police told Valentin: "We found your car, we located your car with somebody in it, we want you to come with us to identify the person." While Valentin was at the police station, an officer told him that the individual was now at the hospital where they would take Valentin "to identify [the man]." In addition, Lieutenant Mecka informed Valentin "that his vehicle was recovered, . . . there was an occupant, and that we are going to go out there to look, let him look at the occupant." The comments by the police, combined with the suggestiveness inherent in a showup, rendered the procedures in the out-of-court identification impermissibly suggestive. (pp. 17-18)

4. The Court must next consider the totality of the circumstances surrounding the showup to determine whether it nevertheless was sufficiently reliable to allow evidence of the victim's identification to be admitted at trial. Several factors, such as the opportunity of the witness to view the criminal at the time of the crime, the witness's degree of attention, the accuracy of the witness's prior description of the defendant, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation, must be weighed against the corrupting effect of the suggestive identification procedure. (pp.18-19)

5. Valentin had observed defendant almost daily for a month during his employment as a security guard, and he had sufficient opportunity to observe defendant during the attack when he said something to Valentin and then asked him for money. Valentin also quickly identified defendant at the hospital. The approximate five-hour period between the incident and the showup does not subvert the reliability of the identification procedure. Weighing all those factors in favor of reliability against the corrupting effect of the impermissibly suggestive identification procedure, the identification procedure was reliable and did not result in a substantial likelihood of misidentification. The trial court properly admitted Valentin's out-of-court identification of defendant. (pp. 19-22)

6. New Jersey's model jury charge on out-of-court identification has not been amended since 1999. The Court requests that the Criminal Practice Committee and the Model Jury Charge Committee consider whether that jury charge should expressly address whether the identification was the product of suggestion, as well as any other factor the Committees deem appropriate. (pp. 22-24)

The judgment of the Appellate Division is AFFIRMED.

JUSTICE ALBIN, has filed a separate, DISSENTING opinion, in which JUSTICE LONG joins, expressing the view that the Court should set new standards that prohibit highly suggestive identification procedures, such as the showing of a single suspect to a witness, unless warranted by exigent circumstances; even under the current standard, the identification of defendant should have been excluded because the showup procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.

The issue presented to the Court is whether the identification procedure used by the police was impermissibly suggestive and resulted in a substantial likelihood of misidentification. Prior to trial, defendant sought to exclude evidence that the victim had identified him at the showup. Following a hearing, the trial court concluded that the out-of-court showup was not impermissibly suggestive and denied defendant's motion. Based largely on the victim's identification testimony, a jury convicted defendant of carjacking and receiving stolen property. The Appellate Division affirmed. We conclude that the showup procedure was impermissibly suggestive, but because the victim's identification of defendant was reliable it was properly admitted at trial. Accordingly, we affirm the Appellate Division's judgment.

I.

On February 26, 2002, Benjamin Valentin, a sixty-three-year-old private security guard, was assigned to work the 4:00 p.m. to 12:00 a.m. shift in a Hoboken housing complex. He had been working in that area for approximately one month. At the conclusion of his shift, Valentin entered his car and drove to the exit to wait for traffic to pass. While stopped, Valentin observed a man, later identified as defendant Carmelo Herrera, approach on his bicycle before stopping near the front of Valentin's car and yelling something. Valentin did not hear what defendant said to him and lowered his window. Defendant walked to the window and asked Valentin for five dollars. When Valentin replied that he had no money, defendant punched him twice, once in the face and once on the back of the neck, knocking Valentin unconscious. When Valentin regained consciousness, his car was missing and he was bleeding. He walked to a nearby security booth and called the police.

Officer James Miller of the Hoboken Police Department arrived at the scene a short while later. Valentin related the incident and described his assailant as a Hispanic male, about 5'7", with a husky build, and a scar on his face, who was wearing something white and red.*fn1 Valentin was taken to St. Mary's hospital in Hoboken for treatment.

Meanwhile, Officer Joseph Carr of the Harrison Police Department was called to an accident scene shortly after 1:00 a.m. He observed a damaged vehicle in the roadway with the front passenger side tire missing. A man, later identified as defendant, was standing in front of the vehicle. Because defendant appeared intoxicated, Officer Carr arrested and transported him to the police station to administer a breathalyzer test. A search of his person revealed four black belt keepers, which are used by police or security personnel to secure their belts to gun holsters. While preparing his report, Officer Carr received information that the damaged vehicle was stolen from Hoboken.

After the Hoboken police were informed that Valentin's car had been recovered, Lieutenant Edward Mecka contacted the Hudson County Prosecutor's Office to request a "showup" between the victim and the person found with the victim's car. Following that conversation, Lieutenant Mecka and Detective Padilla traveled to St. Mary's Hospital where they informed Valentin of the situation and asked him to go to the police station to identify the man who attacked him. Lieutenant Mecka transported Valentin to the station, where, on arrival, Lieutenant Mecka learned that defendant had been taken to West Hudson Hospital, so the Lieutenant drove Valentin there. As soon as Valentin entered the emergency room of the hospital, he looked around and identified defendant, who was sitting on a hospital bed about six feet away, as the man who had attacked him. The only other persons in the emergency room were two police officers and nurses.

Defendant was indicted for first-degree carjacking, N.J.S.A. 2C:15-2, and third-degree receiving stolen property, N.J.S.A. 2C:20-7. Prior to trial, he moved to suppress Valentin's out-of-court identification. At the hearing on the motion to suppress, the State offered the testimony of Valentin, Lieutenant Mecka, and Detective Robert Gohde of the Hoboken Police Department. The trial court found that Valentin had seen defendant in the neighborhood prior to the incident and the police did not cause Valentin to misidentify or identify defendant. The court concluded that the out-of-court identification was admissible under United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed. 2d 1149 (1967).

At trial, the jury found defendant guilty of both counts. The court merged the convictions and sentenced defendant on the carjacking count to a term of thirty years with an eighty-five percent period of parole ineligibility.

In an unpublished opinion, the Appellate Division rejected defendant's argument that the identification procedure used by the police was impermissibly suggestive and resulted in a substantial likelihood of misidentification, and held that the trial court's findings were supported by credible evidence in the record. However, the panel vacated the sentence and remanded for resentencing because the trial court improperly considered a twenty-year presumptive term for carjacking. We granted defendant's petition for certification. 185 N.J. 35 (2005).

II.

Defendant argues that the manner in which the police conducted the showup identification was impermissibly suggestive and produced a high likelihood of misidentification. He urges that the statements made by the police to Valentin prior to the identification and the manner in which the showup procedure was executed made it impermissibly suggestive. Further, he asserts that the showup procedure lacks trustworthiness because the description of defendant that Valentin provided was inaccurate and because a significant period of time elapsed from the time of the incident to the time of the showup identification.

In his supplemental brief before us, defendant urges this Court to adopt a new standard for determining the admissibility of showup identification evidence. He urges that because showup identifications are by their nature suggestive and more likely to yield false identifications compared to properly conducted lineups and photo arrays, they should be admissible only when the showup is necessary. That is, showup identification evidence should be admitted only if exigent circumstances that require immediate identification are present. Under that approach, defendant argues that a showup conducted without exigent circumstances would be inadmissible regardless of any indication of reliability. Applying that standard here, defendant concludes that the showup identification testimony should be excluded because of the absence of exigent circumstances to justify the showup.

The State asserts that the identification procedures followed by our courts are long standing and clear; the court must determine whether the identification procedure here was impermissibly suggestive, and, if so, the court must decide whether the procedure nonetheless was reliable. Applying that two-step test, the State maintains that the showup was not ...

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